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Winter 2012-13 VLJ

Winter 2012-13 VLJ

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Winter 2012-2013

A New Judge Joins the CAVC
The CAVC’s case load has roughly doubled since the late 1990s to roughly 4,600 cases per year. As a result, the CAVC has had one of the highest, if not the highest, case loads per active judge of any federal appellate court in the country. In response, in 2008, the CAVC was authorized to expand --- at least temporarily --- to nine judges, as of January 2010. However, the authorization to increase the number of CAVC judges, which was part of the Veterans Benefits Improvement Act of 2008, was set to expire at the end of 2012 if the positions were not filled. Although the CAVC grew to eight judges with the confirmations of Judges Coral Wong Pietsch and Margaret Bartley in May 2012, no other nomination was pending when the Veterans Law Journal last went to press.
William S. Greenberg, the newest member of the CAVC.


The White House subsequently acted on November 15, 2012, with the nomination of William S. Greenberg. In response, the Senate Veterans Affairs Committee seemingly “fast-tracked” the nomination, holding a hearing regarding the nomination on December 12, 2012. The nomination was reported by the committee on December 21, 2012, and Judge Greenberg was confirmed by unanimous consent of the U.S. Senate on December 21, 2012. He took the judicial oath on December 28, 2012, for a term of fifteen years. Judge Greenberg has been actively serving on the Court since the beginning of January 2013, and his formal investiture is expected to be held sometime in May. He is in temporary quarters while his chambers are being built out and renovated. Judge Greenberg brings a wealth of litigation experience to the Court, as demonstrated by information from his official Court biography:

Judge William S. Greenberg was a partner of McCarter & English, LLP. He joined the firm as an associate following a judicial clerkship in 1968, and returned as a partner in 1993. The majority of his career has involved litigation in federal and state courts. Judge Greenberg has been a Certified Civil Trial Attorney by the Supreme Court of New Jersey since 1983. He served as chairman of the Judicial and Prosecutorial Appointments Committee of the New Jersey State Bar Association, which considers all candidates to be a judge or prosecutor submitted by the governor of New Jersey. He was president of the Association of Trial Lawyers of America, New Jersey (the New Jersey Association for Justice), and has served as a trustee of the New Jersey State Bar Association and of the New Jersey State Bar Foundation. He also served as a member of the New Jersey Supreme Court Committee on the Admission of Foreign Attorneys. He established and chaired the New Jersey State Bar Association (public service/pro bono) program of military legal assistance for members of the Reserve Components called to active duty after September 11, Judge Greenberg, continued on page 16.

Message from the President
Happy New Year! The Bar Association is off to a roaring start. We have a number of programs in the works for our members. Our biggest upcoming event will be our program in conjunction with the CAVC’s judicial conference in April (http://www.uscourts.cavc.gov/judicial_conference/). The details on that program are not quite ready for release, but they will be available by the beginning of February when the Court opens its registration. In addition, we have two interesting programs that we will be holding prior to the judicial conference. The first will be a program on understanding the veterans service organizations. Those of us who work with claims everyday are used to seeing the organizations as sponsors of representatives who assist veterans. However, we often do not see the many other ways in which these organizations help veterans and shape the adjudication system. This program will feature representatives from several of those organizations talking about the many facets of their operations. The second program will be an examination of the special issues involved in representing incarcerated veterans. The support available through VA can make a crucial difference in whether an incarcerated veteran will be able to get back on the right track once released. However, successfully handling a claim while a veteran is incarcerated can be a very tricky process. This program will look at some of the unique challenges faced in these cases. Thanks to our continued partnership with the Federal Circuit Bar Association, both of these programs will be available on WebX for those who wish to participate remotely. We are also looking past April to the release of the DSM-V, and are already working on a great program to examine the important changes that this development will bring to mental condition claims. Aside from educational programs, we will have another happy hour at Washington’s City Club on March 14. As you will see from the pictures in this issue, the December event had a fantastic turn out from across the entire spectrum of our membership, including several CAVC judges and members of the Board. Also, continuing our public service efforts, we will again volunteer to wash either the Vietnam Memorial Wall or the Korean War Memorial. The National Park Service will start making assignments

in March. If you were not able to participate when we washed the Vietnam Memorial Wall last August, you should definitely join us this year for a memorable event. Finally, our efforts to expand our student outreach are in high gear. We have already set up programs at several schools with which we have not had direct contact before, and we hope to add more presentations around the country in order to build on the huge turnouts we had for our programs last year. We are also planning to sponsor a number of law students to attend the Court’s judicial conference, so please contact me if you know a school or a law student that would be interested in this opportunity. # James Ridgway President, CAVC Bar Association james.ridgway@va.gov IN THIS ISSUE A Message from the Chief Judge ............................3 A Recap of the 2012 NVLMCC ................................4 Solze v. Shinseki .......................................................6 Book Review of Veterans on Trial ..........................7 Monzingo v. Shinseki ...............................................9 Jones v. Shinseki .......................................................11 The Librarian’s Corner ............................................12 A Peek Inside VA OGC PSG VII .............................13 Procopio v. Shinseki .................................................14


A Message from the Chief Judge By Hon. Bruce E. Kasold

honor the past as we recognize and celebrate 25 years since the creation of the Court in 1988. The Court’s program will focus on the changing landscape of veterans law, and will offer sessions that appeal to all those who practice or have an interest in veterans law. Here’s a sneak peek at some of the offerings:           Keynote Address by Supreme Court Justice Antonin Scalia Professor Mike Allen’s Rousing Review of Recent Case Law Trends A Lively and Informative Lesson on Anatomy for Attorneys An Updated Discussion on Obtaining Records An Inside Look at Law School Veterans Clinics and the Veterans Law Community An Ethics Presentation Specifically Pertaining to Veterans Law “Meet the New Judges” -- A Conversation with Judges Pietsch, Bartley, and Greenberg Navigating Character of Discharge and Benefits Eligibility Issues How and When to Appeal to the Federal Circuit and the Supreme Court Hot Practice Topics: A Spirited Exchange on Virtual Records, EAJA, and More Making Sense of Mitchell and DeLuca Networking and Conversation Opportunities for Veterans Law Practitioners

Dear Bar Association Members, Happy New Year, and may this message find you rested and revitalized after a joyful holiday season! And how fitting that during that time of giving, we in the veterans law community were all fortunate to receive a very special gift -- the appointment of our newest judge, the Honorable William S. Greenberg. Judge Greenberg brings a new perspective to the Court after having been in private practice for over four decades. Now fully up to speed with nine active judges, the Court is looking forward to hitting its stride in 2013. We also are looking forward to our Twelfth Judicial Conference, scheduled for Thursday and Friday, April 18-19, 2013, at the Grand Hyatt in Washington, DC. Judges Schoelen and Bartley and their Program Committee have worked tirelessly over the past year to put together what looks like a dynamite conference. The theme is “25 Years of Judicial Review: Moving Forward and Looking Back.” We will talk about the challenges ahead for veterans law practitioners, and  

I know that the Bar Association is also planning an exciting program on the second afternoon of the conference, and I look forward to seeing many of you there. I feel fortunate indeed to serve daily with a Court staff and bar whose dedication to veterans and veterans law is palpable and pure. So let me again take this opportunity to thank all of you for the many and varied ways in which you work to ensure justice for our nation’s veterans. See you in April! # Regards, Chief Judge Kasold


Twenty Teams Participate in the Fourth Annual National Veterans Law Moot Court Competition
On November 3 and 4, 2012, the U.S. Court of Appeals for Veterans Claims (CAVC) and the CAVC Bar Association co-sponsored the fourth annual National Veterans Law Moot Court Competition (NVLMCC), which was hosted by the George Washington University School of Law. The NVLMCC was another resounding success in introducing students to veterans law and bringing together practitioners from all areas of veterans law. The two-person teams addressed two issues in the fictional case of Shinseki v. Sickles before the Supreme Court. Ultimately, the Georgetown University Law Center team of Jeffrey DeSousa and Mitchell London won out as the overall champions. Georgetown and Stetson University College of Law bested teams from the South Texas College of Law in the semi-finals. In addition to being half of the winning team, Georgetown team member Jeffrey DeSousa also earned top oral advocate honors. The best petitioner’s brief award went to Stetson University College of Law. Two teams tied for best respondent’s brief, the other Stetson team and a team from the South Texas College of Law. In the fact pattern, veteran Daniela Sickles served on active duty as a combat engineer in the U.S. Marine Corps from December 1987 to October 1991. She earned the Navy and Marine Corps Commendation Medal after rescuing a fellow marine from a minefield during a mortar attack during Operation Desert Storm. Upon her return to the United States, she experienced substantial difficulty readjusting, including severe disciplinary problems and alcohol abuse. In July 1991, Ms. Sickles took her 2-year-old son from his custodial father’s house to her mother’s house, where she exhibited bizarre behavior. Her mother called the police out off fear for the safety of the child, and Ms. Sickles was arrested. Although the father declined to press charges in civilian court, Ms. Sickles was charged by the military with kidnapping and being absent without leave. Rather than contest the court-martial charges, Ms. Sickles accepted an administrative separation, resulting in a discharge under other-than-honorable conditions. In 1995, Ms. Sickles applied for disability compensation benefits for a back injury and PTSD. VA, however, concluded that her other-thanhonorable discharge was a bar to those benefits and determined that she was not “insane” during the commission of the acts that led to her other-than-honorable discharge. For the past 16 years, she has been contesting that determination. The Board of Veterans’ Appeals (Board) concluded Ms. Sickles was not insane for VA purposes at the time of the kidnapping. On appeal, the CAVC determined that the regulatory standard interpreting “insanity” for the purposes of VA benefits law was NVLMCC, continued on page 5.

The final round panel of Judges Hagel, Bartley, and Greene

Best Oral Advocate, Jeffrey DeSousa of Georgetown Law Center


NVLMCC, continued from page 4. valid under the governing statute but unconstitutional as a violation of due process. The CAVC stayed Ms. Sickles’s case to allow VA to promulgate a new regulation. The Secretary appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which also determined that § 3.354(a) was invalid. Applying the M’Naghten standard, which VA had endorsed in a proposed rule, the Federal Circuit reversed the Board’s determination that Ms. Sickles was not insane at the time of the kidnapping. VA appealed the Federal Circuit decision to the United States Supreme Court, which granted certiorari on the following two questions: 1. Is the regulatory definition of “insanity” set forth in 38 C.F.R. § 3.354(a) for the purposes of determining eligibility for benefits under Title 38 valid? 2. Assuming that the first issue were decided in the claimant’s favor, whether the Federal Circuit erred in granting the remedy of reversal without remanding for agency rule making and fact finding? Each team was assigned to represent either the Secretary as petitioner or the veteran as respondent in briefing, and worked from August through September drafting briefs. However, each team had to argue both sides during the two preliminary rounds. The sides for the quarter-final, semi-final and final rounds were assigned at random.

Semi-final rounds were judged by Court staff, VA attorneys, and experienced veterans law practitioners. The semi-finals were judged by Martin Hockey of the U.S. Department of Justice, Zachary Stolz of Chisholm Chisholm & Kilpatrick, and the CAVC’s Central Legal Staff’s Cynthia Brandon-Arnold. The final round was judged by a panel of judges from the CAVC, comprising Judges Greene, Hagel, and Bartley. Overall, twenty teams from thirteen law schools competed, including: Florida Coastal School of Law, George Washington Law School, Georgetown University Law Center, John Marshall Law School, Lincoln Memorial University - Duncan School of Law, Mississippi College School of Law, North Carolina Central University School of Law, South Texas College of Law, Stetson University College of Law, Thomas Cooley Law School, University of Illinois, University of Missouri Law School and the University of Missouri - Kansas City School of Law. Reactions from the students and the judges were extremely positive. The judges were very impressed by the quality of advocacy displayed by the students, especially those who qualified for the elimination rounds on the second day. In addition to the competition itself, the participants enjoyed outstanding hospitality from the George Washington University School of Law, which not only provided facilities and support staff for the preliminary rounds on Saturday, but also treated everyone to excellent spreads of refreshments throughout the competition and a fine reception on Saturday evening. Once again, the competition was made possible by the extraordinary efforts of dozens of members of the CAVC and the CAVC Bar Association. #

2012 NVLMCC Champions Jeffrey DeSousa and Mitchell London of the Georgetown Law Center with Judge Hagel (R) and CAVC Bar Association President James Ridgway (L).

2012 NVLMCC Finalists Erik Johanson & Amar Agha of the Stetson University College of Law with Judge Hagel (R) and CAVC Bar Association President James Ridgway (L).


CAVC Expresses Concern over Fiduciary Dispute
by Mark Vichich

Reporting on Solze v. Shinseki, __Vet. App. __, No. 12-1512 (per curiam order) (Jan. 4, 2013).
Early this year, the Court handed down its latest precedent addressing VA’s fiduciary program, when it denied a petition for a writ of extraordinary relief filed by an incompetent veteran and one of his daughters. The relevant facts began more than a decade earlier, in July 2001, when United States Marines Corps veteran Robert Solze appointed his wife as his agent, and one of his daughters as his alternate agent, pursuant to a Durable Financial Power of Attorney (POA) executed under the laws of Maine. Mr. Solze’s wife died shortly after he executed the POA, and the daughter, Lois Dimitre, began managing his financial matters a short time later. In January 2011, a VA regional office (RO) awarded disability compensation benefits to Mr. Solze, resulting in a 100% disability rating and a retroactive award of $10,692. In April 2011, VA found Solze to be incompetent to manage his VA benefits, and, the following month, proposed to appoint a federal fiduciary to serve as a payee for those benefits. At that time, Ms. Dimitre was still managing Mr. Solze’s financial matters, while another daughter, Robbi Guillerault, cared for him at her home. As part of its fiduciary appointment process, VA attempted to send a field examiner to Mr. Solze’s residence on numerous occasions to determine who would be best suited to serve as his federal fiduciary. However, Mr. Solze, through Ms. Dimitre, cancelled each field examination VA scheduled and informed the agency that he did not want a federal fiduciary and that one was not necessary. Subsequently, VA discontinued paying Solze’s benefits directly to him, and appointed a separate individual, “Ms. LR,” to serve as his federal fiduciary. In December 2011, Mr. Solze and Ms. Dimitre, through an attorney, filed a notice of disagreement (NOD) with the VA RO, essentially disagreeing with VA’s determination that a federal fiduciary was necessary, and with VA’s selection and appointment of Ms. LR as the federal fiduciary. The following month, Mr. Solze and Ms. Dimitre, through an attorney,

demanded that Ms. LR provide, to either Ms. Dimitre or the attorney, the funds she held on Mr. Solze’s behalf. They informed Ms. LR that she would face legal action if she failed to comply. Ms. LR promptly resigned as fiduciary, before she had distributed any money on Mr. Solze’s behalf. In May 2012, Mr. Solze and Ms. Dimitre filed the petition for extraordinary relief in the Court, asking it to, among other things, order the Secretary to recognize the POA and the relevant laws of Maine, and pay Ms. Dimitre all of Mr. Solze’s accumulated and future VA benefits. Later that same month, the RO issued a Statement of the Case (SOC) in response to the NOD, and, shortly thereafter, Mr. Solze and Ms. Dimitre filed a Form 9, Appeal to the Board of Veterans’ Appeals. After the petitioners filed their petition, the Court, either as a single judge or as a panel, issued orders seeking responses from one or both parties on five separate occasions. After receiving numerous pleadings and hearing oral arguments, the Court denied the petition in a January 4, 2013, per curiam order. Solze v. Shinseki, Vet. App. No. 12-1512 (Jan. 4, 2013). The Court expressed its concern for VA’s reluctance to use other means to distribute Mr. Solze’s benefits while the fiduciary appointment dispute was pending. In particular, the Court noted that, under 38 C.F.R. § 13.59, the Secretary could have sought appointment and certification of a fiduciary appointed by a state court, and, under 38 C.F.R. § 13.63, he could have made payment to the veteran’s custodian-in-fact. Those concerns, however, were not enough to warrant the issuance of a writ. In particular, the Court found that petitioners had failed to establish that they had no adequate alternative means to obtain the relief sought, one of the three conditions that must be satisfied before the Court may issue a writ. Citing its prior decision in Freeman v. Shinseki, 24 Vet. App. 404 (2011), the Court acknowledged that the selection and appointment of a fiduciary is an issue appealable to the Board. The Court then observed that, unlike in other cases in which it had issued writs, the Secretary in this case had not refused to process the petitioners’ appeal. Instead, the Court observed, the RO had issued an SOC and certified the case to the Board. Because the Secretary was processing the appeal “in an expeditious manner,” the Court stated, petitioners Solze,continued on page 7.


Solze, continued from page 6. had a “clear alternative method by which to obtain the relief they seek,” and it denied the petition. Judge Lance dissented in part. He first expressed frustration with the failure of both parties to resolve the dispute without Court intervention. He observed that either party could have initiated a protective proceeding in Maine Probate Court, which likely would have resulted in Ms. Dimitre being appointed conservator, and VA having to honor that appointment. He also noted that Ms. Dimitre could have simply complied with the Secretary’s requests for information when seeking to appoint a fiduciary. Judge Lance was “especially perplexed” with the Secretary’s failure to resolve the matter, given the statutory duties to assist a claimant and to act in the best interest of an incompetent veteran. He also expressed uncertainty as to the Board’s willingness to address the constitutional due process issue raised by petitioners, and the issues raised with what he perceived to be a conflict between Maine and federal law. However, he agreed with the Court’s denial of a writ as pertaining to the issues appealed to the Board because the petitioners had not shown they lacked alternative means to obtain their desired relief. Although Judge Lance agreed with the Court’s denial of the writ, he nonetheless would have ordered the Secretary to make payments under 38 C.F.R. § 13.63, which authorizes VA to temporary pay benefits to a custodian-in-fact. He argued that Mr. Solze’s situation was “precisely the set of circumstances” contemplated by section 13.63, and its enabling statute, 38 U.S.C. § 5502(d). He was not persuaded by the Secretary’s arguments as to why section 13.63 was not applicable. The Secretary argued that the issue was outside of the Court’s jurisdiction because it was pending before the Board. Rejecting this argument, Judge Lance cited Mr. Solze’s “advanced age and VA’s excessive delay” in this case as factors weighing in favor of issuing an order for the Secretary to make payments. The Secretary had argued that, because the decision to make payments under section 13.63 was discretionary, the Court had no jurisdiction to make the determination in the first instance. In response, Judge Lance argued that the Secretary’s failure to make the payments here was either a reviewable decision not to do so, or “such a prolonged failure to act that it shocks the conscience and weighs in favor

of the Court granting relief by ordering the Secretary to decide whether § 13.63 is applicable.” Lastly, the Secretary argued that Ms. Guillerault, Mr. Solze’s custodian-in-fact, was not a party to the case and had not expressed desire to serve as a temporary fiduciary. In response, Judge Lance noted the Secretary’s statutory obligations to act in an incompetent veteran’s best interest, and questioned why VA had not independently suggested that course of action. # Mark Vichich is an attorney in Professional Staff Group VII of the VA Office of the General Counsel.

Book Review: Veterans on Trial: The Coming Court Battles over PTSD, Barry R. Schaller (Potomac Books, 2012), 227 p.p.
by James D. Ridgway Veterans on Trial is not a book about the benefits adjudication system. Instead, the author, Connecticut Supreme Court justice Barry R. Schaller, is concerned about veterans and the criminal law system. Nonetheless, there is a lot in this volume to offer anyone interested in any aspect of the experience of veterans suffering from mental disabilities stemming from the effects of combat. Justice Schaller’s approach to the problem of veterans suffering from PTSD is much more about trying to comprehend it than it is pretending that there is easy answer. The bulk of the book is a thoroughly researched examination of the past and present realities of the mental health consequences of combat. Justice Schaller examines in substantial detail the history of psychiatric casualties and the projected consequences of Iraq and Afghanistan. On this foundation, he discusses what can be done -- particularly by the criminal courts -- to better assist veterans with serious readjustment issues. For practitioners of veterans law, the main value of this book is Justice Schaller’s compilation and analysis of a great deal of the research on PTSD in combat veterans. The presentation is both detailed and judicial. Justice Schaller carefully acknowledges the Veterans on Trial, continued on page 8.


Veterans on Trial, continued from page 7. limitations of the reports and studies he discusses, and points out such issues as limited sample sizes and analytical differences, which may limit their usefulness. He avoids dubious generalizations and his conservative estimates based upon a large body of data show that his goal is not to inflame but rather to present a sober view of a serious issue. The first major part of the book, discussing the history of PTSD among American combat troops, showcases efforts that went into understanding the realities of the problem before attempting to reach any conclusions. Although PTSD was not a recognized condition prior to the conclusion of the Vietnam War, Justice Schaller looks for indications of its prevalence in the past. His historical analysis begins with the Civil War, where he examines a number of indirect indications of the prevalence of PTSD, such as one report that two-thirds of post-war state prisoners in the North were Union veterans. He observes that in World War I, 69,000 American soldiers (over a quarter of the total involved in combat) were evacuated from the front for mental health reasons. Similarly, in World War II, more than a half-million soldiers were evacuated for psychiatric reasons, while a similar number were pulled from the front lines for weeks or months due to mental health reasons. He also discusses in depth the more widely publicized information on Vietnam veterans’ mental health issues. In the next part of the book, Justice Schaller turns to the recent military conflicts with a similar analytical focus. He reports that, as of 2011, approximately two million service members had been deployed to either Iraq or Afghanistan. As of October 2007, an estimated 300,000 veterans of Iraq and Afghanistan were suffering from either PTSD or major depression. In 2009, over thirty-six percent of Iraq and Afghanistan veterans receiving health care from VA had at least one mental health diagnosis. The projections cited by the book suggest that 700,000 veterans of these conflicts will eventually be diagnosed with PTSD. Notably, the book moves beyond this headline-grabbing number to examine specific emerging problems, such as the combat experiences of women veterans and PTSD related to military sexual trauma. To humanize the dizzying array of numbers, the book regularly interrupts the litany with short narratives

from eight different veterans who shared their personal struggles with Justice Schaller. These stories do a great job of anchoring the black-and-white numbers, while shedding light on the countless shades of grey that lurk under their surface. In the final part of the book, the author turns to his central concern of how the criminal courts might better handle the cases of veterans suffering from PTSD. He also recommends improvements beyond the limitations of the courts and encourages a host of professionals and policymakers to engage in a holistic approach that would help to prevent as many cases as possible from ever reaching the courts. Accordingly, his suggestions stretch beyond criminal law to address veterans’ needs before their lives spiral out of control. The core philosophy of Justice Schaller’s narrative is that veterans must still be treated equally under the law, even while we seek better ways to address their issues. In this regard, there is a clear role for practitioners of veterans law to assist with these efforts, even though it is unstated in this volume. # James Ridgway is President of the CAVC Bar Association and Chief Counsel for Policy and Procedure at the Board of Veterans’ Appeals.


CAVC Addresses Status of Medical Reports not Cited to Board
by Kristine Gielow
Reporting on Monzingo v. Shinseki, No. 10-922, 2012 WL 5869404 (Vet. App. Nov. 21, 2012) (per curiam). In Monzingo v. Shinseki, the U.S. Court of Appeals for Veterans Claims affirmed a February 25, 2010 decision of the Board of Veterans’ Appeals denying entitlement to service connection for bilateral hearing loss. Mr. Monzingo’s primary argument was that the Board had constructive possession of two reports that it failed to address: a 2006 report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (Noise and Military Service), and a 1982 report entitled Tinnitus: Facts, Theories, and Treatments (Tinnitus). In reviewing the doctrine of constructive possession, the Court first discussed Bell v. Derwinski, 2 Vet. App. 611, 612 (1992), which generally held that, “where the documents proffered by the appellant are within the Secretary’s control and could reasonably be expected to be a part of the record ‘before the Secretary and the Board,’ such documents are, in contemplation of law, before the Secretary and the Board.” The Court also discussed Bowey v. West, 11 Vet. App. 106, 107-08 (1998) (per curiam), which set forth two rules for determining whether the Board had constructive possession of a document: (1) a “specific” rule that the document be clearly generated by VA or be submitted by the appellant, and (2) a “broader” rule that the document had to be within the Secretary’s control and reasonably expected to be part of the record. Thereafter, the Court discussed Goodwin v. West, 11 Vet. App. 494, 495 (1998) (per curiam), which clarified that, even when a document is generated by VA, it will not be considered constructively before the Board unless the document has a direct relationship to a claimant’s appeal. In applying this jurisprudence to the facts of this case, the Court determined that the Board did not have constructive possession of the two reports identified by Mr. Monzingo. With respect to the first report, Noise and Military Service, the Court stated that Mr. Monzingo offered no support for his argument that this document was constructively of record, beyond noting that VA sponsored the report and received a copy of it. The Court also determined that the

report, which generally discussed hearing loss as it relates to military service, was too tenuous to reasonably support an expectation that it would be before the Board in every hearing loss claim or constructively part of the record in Mr. Monzingo’s claim. With respect to the second report, Tinnitus, the Court stated that the document was neither prepared for nor commissioned by VA, and it also bore no relationship to Mr. Monzingo’s claim other than its general discussion of the relationship between tinnitus and hearing loss. The Court found that this was also too tenuous a connection and did not establish the reasonable expectation that the report would be part of the record before the Board unless Mr. Monzingo either previously submitted the report to VA or requested that it be obtained. The Court next addressed Mr. Monzingo’s alternate argument that the Court should take judicial notice of the findings within the two reports. However, because the findings and conclusions of the reports were neither facts of universal notoriety nor facts not subject to reasonable dispute, the Court determined that it was impermissible to take judicial notice of them. Mr. Monzingo also argued that the Board did not provide adequate reasons or bases because it failed to address the possibility that his service-connected tinnitus constituted evidence of continuous symptomatology of hearing loss or explain the Board’s reliance on his separation examination because tests at that time generally did not adequately identify acoustic trauma. Mr. Monzingo cited to the findings of Noise and Military Service and Tinnitus in support of his assertions, but, as explained above, the Court determined that these reports were neither actually nor constructively of record before the Board. In addition, because the underlying issues were not either raised by Mr. Monzingo or reasonably raised by the evidence of record before the Board, the Court concluded that the Board did not err by failing to address them. Next, the Court addressed Mr. Monzingo’s argument that a February 2008 VA examination report was inadequate. With regard to his contention that it lacked sufficient detail, the Court, contrasting the duties of medical examiners with the duties of VA adjudicators, stated that a VA examiner is not required to comment on every favorable piece of Monzingo,continued on page 10.


Monzingo, continued from page 9. evidence of record. Further, although the VA examiner’s rationale did not expressly document the examiner’s thought process from the facts to conclusion, the Court found that this did not render the report inadequate. The Court stated that the VA examination report must be read as a whole. In this case, it was clear to the Court that, when considering the examination report as a whole, the opinion was based on the lack of any significant in-service change in hearing, the length of time before the onset of hearing loss after service, and the examiner’s medical experience that hearing loss under such circumstances was not due to in-service noise exposure. To the extent that Mr. Monzingo did not agree with the opinion rendered, the Court determined that he failed to demonstrate that he possessed the requisite competence to rebut the opinion, and that he also did not cite to any evidence in the record demonstrating that the VA examiner was incompetent, relied upon an incorrect factual premise, or otherwise provided misinformation. Moreover, to the extent he asserted that the VA examiner failed to comment on various medical studies, the Court stated that the failure to explicitly cite any studies is not evidence that the examiner was unaware of such studies and does not render the examination report inadequate. Furthermore, the Court stated that even if a medical opinion were inadequate to decide a claim, it would not necessarily be assigned no probative weight. When an opinion is merely lacking in detail, regardless of whether it is in favor of or against a claim, the Board may give it weight based upon the amount of information and analysis that it does contain. On the other hand, the Court stated that if a medical opinion is based on an inaccurate factual premise, then it would be correct to discount it entirely. Here, the Court found that Mr. Monzingo had not demonstrated that the February 2008 examination report was so lacking in detail that VA was required to return it for clarification, and the Board did not clearly err by relying upon it. Finally, Mr. Monzingo argued that the Board erroneously found that his hearing improved during service. He cited to the findings of Noise and Military Service in support of his assertion that hearing loss due to acoustic trauma is irreversible, but the Court reiterated that this report was neither

actually nor constructively of record. Moreover, even if it were medically impossible for hearing acuity to improve after acoustic trauma, the Court stated that it could be logically inferred that his hearing loss was not caused by acoustic trauma. The Court noted that the essential inquiry in this case was whether hearing acuity worsened in service, but Mr. Monzingo failed to demonstrate that it was clear error for the Board to rely on the service records and VA examination report, which reflected no worsening in service, over his more recent assertions of in-service worsening. In a concurring opinion, Judge Kasold acknowledged that one could view isolated statements taken out of context from Nieves–Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), and Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007), to inaccurately conclude that a medical opinion is afforded no weight if it lacks a specific explanation. However, when read in context, Nieves-Rodriguez and Stefl hold that rationale is an essential element of weighing opinions with differing conclusions. Judge Kasold, in reviewing the Court’s case law addressing the adequacy of opinions, agreed that examination reports are to be read as whole, and stated that it is appropriate to take into account the history and tests upon which the report is based. # Kristine Gielow is a Counsel at the Board of Veterans’ Appeals.

Board attorneys Chris Hoebeck, James Ridgway, And Scott Shoreman catching up with Victoria Moshiashwili, CAVC law clerk.


CAVC Concludes that VA May Not Consider Ameliorative Effect of Medication where the Applicable Diagnostic Code is Silent
by Kim Sheffield Reporting on Jones v. Shinseki, 26 Vet. App. 56 (2012). In this case, the Court was called upon to address whether the ameliorating effect of medication could properly be considered in rating a service-connected disability when the diagnostic code under which the disability was rated was silent with respect to medication. David L. Jones, a Marine Corps veteran, appealed the Board’s denial of his entitlement to an initial disability rating in excess of ten percent for his service-connected irritable bowel syndrome (IBS). The condition was rated by analogy under the provisions of 38 C.F.R. § 4.114 Diagnostic Code (DC) 7319, irritable colon syndrome. A 30-percent rating is warranted under this provision for a “severe” condition manifested by “diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.” The undisputed medical evidence indicated that Mr. Jones suffered from chronic episodes of loose bowel movements, which he described as diarrhea. Mr. Jones also testified as to near-constant abdominal pain. In the decision on appeal, the Board found that the medical evidence did not indicate a level of impairment warranting an increased rating of 30 percent. In making this finding, the Board stated that “medical records from 2004 to 2009 consistently show problems with loose bowel movements, but were negative for diarrhea and constipation, and that anti-acid medication provided some relief of symptoms.” At the Court Mr. Jones argued that the Board committed legal error in making this finding by considering factors outside the schedular rating criteria for IBS, specifically the relief afforded to Mr. Jones through the use of medication. The Secretary asserted that the rating criteria contemplated whether the frequency and severity of the symptoms were lessened or controlled by medication, and that the Board was required to view the Mr. Jones’s condition “in terms of overall history and context.”

The Court conducted a de novo review of VA’s interpretation and application of the rating criteria at issue, and held that the Board committed legal error by considering the effects of medication when those effects were not explicitly contemplated by the rating criteria. Quoting Brown v. Gardner, 513 U.S. 115 (1994), the Court pointed out that “if the meaning of the regulation is clear from its language, then that is ‘the end of the matter.’” The Court noted that in other diagnostic codes, for example those pertaining to fibromyalgia and bronchial asthma, the Secretary demonstrated that he is aware of how to include the effect of medication as a factor to be considered when rating a particular disability. The Court concluded that the Secretary’s omission of the effects of medication as a criterion to be considered under DC 7319, while including such effects as criteria under other diagnostic codes, must therefore be read as a deliberate choice. The Court found that its analysis was not changed by 38 C.F.R. §§ 4.1 and 4.2, which require that each disability must be viewed in relation to its history, because nothing in either regulation addresses whether VA should consider the effects of medication generally. The Court made clear that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria, to ensure that all similarly structured diagnostic codes are interpreted and applied in a consistent manner. # Kim Sheffield is an Appellate Attorney with Bergmann & Moore, LLC, based in Bethesda, MD.

Washington’s City Club was the site of our December happy hour and we’ll be returning on March 14th. See you there!


The Librarian=s Corner: A False Start
by Allison Fentress I wanted to share something with you that our very own James Ridgway pointed out to me not long after I started working at the Court. It was the fact that historical notes in 38 USCA are missing in the 2002 bound volumes. Many of the sections indicate that Public Law 85-857 was the origin of said sections, but this is not true. Pub. L. 85-857 basically recodified the entire Title 38. To get the original language of individual sections, you have to jump back before Pub. L. 85-857. James has an article coming out in the upcoming issue of the Veterans Law Review, and he explains it well: The critical aspect of the 1958 Act [Pub. L. 85-857] is that it is a red herring. Most modern compilations of veterans law trace the older statutory provisions to this Act. However, this legislation did not actually create any of the currently relevant law. Rather, it did little other than to reorganize them from their locations of fourteen months earlier into the locations where they would remain until 1991, when the Department of Veterans Affairs Codification Act organized Title 38 into the sections with which we are familiar today. Accordingly, any legislative history stated in the code that terminates at “Pub. L. 85-857, Sept. 2, 1958” fails to identify the true origin of the provision. Instead, it merely indicates that it goes further back than the United States Code traces Title 38. James D. Ridgway, Recovering an Institutional Memory: The Origins of the Modern Veterans Benefits System, 1914 to 1958, 5 VETERANS L. REV. (forthcoming 2013), available at http://ssrn.com/abstract=2082576. I think it is easier to show what I am talking about with an example, so look at the history of 38 USCA § 1322, as it currently is: CREDIT(S) (Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1132, § 422; Pub.L. 87-268, § 1(b), (c), Sept. 21, 1961, 75 Stat. 566; Pub.L. 94-433, Title IV, § 405(18), Sept. 30, 1976, 90 Stat. 1380; Pub. L. 97-295, § 4(12), (95)(A), Oct. 12, 1982, 96 Stat.

1305, 1313; renumbered § 1322 and amended Pub. L. 102-83, §§ 4(b)(1), (2)(A), (E), 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 404-406; Pub. L. 108-183, Title VII, § 708(c)(1), Dec. 16, 2003, 117 Stat. 2673.) See how the first one is Pub. L. 85-857? That is a false starting point. I have to pull my old copy of the 1959 or 1979 print edition and find the old version. It used to be at 38 USCA § 422. The Historical Note in the older print version tells me it originated in 1952, gives me a cite, and I can go from there to the original language. That is what is missing in the 2002 edition and following pocket parts: those historical notes to anything that came before Pub. L. 85-857. This historical information is NOT in the official U.S. Code or Westlaw. It is, however, in Lexis and the U.S. Code Service, but you have to look past the History section, which, like USCA, starts with Pub. L. 85-857. Looking further down at the History, Ancillary Laws & Directives, you see a prior version: “This section is based on 38 USC § 1103(b)-(d) (Act Aug. 1, 1956, ch 837, Title IV, § 405(b)-(d), 70 Stat. 875).” That is what you want. It will take you to the original language. So if you do not have the older print versions of 38 USCA from 1959 or 1979, you will need to get your hands on the U.S. Code Service or Lexis. We are doing what we can to convince West to add the historical notes back in when the bound volumes are updated. I hope we are successful. Bottom line: If you see Pub. L. 85-857 as the starting point for the history of a section in Title 38, think again. Odds are you are not done yet. I hope you found this helpful, and that it makes sense. I can be contacted at afentress@uscourts.cavc.gov if you need more information. # Allison Fentress is the Librarian for U.S. Court of Appeals for Veterans Claims.

The publications committee is looking for new members to contribute to upcoming installments of the VETERANS LAW JOURNAL. Participants do not need to be located in the Washington, DC area. Please contact our Publications Chairman, David E. Boelzner, at <Dboelzner@goodmanallen.com> for more information.


A Peek Inside . . . The Department of Veterans Affairs Office of the General Counsel Professional Staff Group VII
by Anita U. Ajenifuja The Office of the General Counsel (OGC) within the Department of Veterans Affairs (VA) is organized into seven Professional Staff Groups (PSG) and 23 regional counsel offices. PSG VII, also referred to as the Veterans Court Appellate Litigation Group, when fully staffed, is composed of over 100 employees, including approximately 70 attorneys, making it the largest staff group in the OGC. PSG VII represents the Secretary of Veterans Affairs, the Honorable Eric K. Shinseki, in all matters before the United States Court of Appeals for Veterans Claims (CAVC). It handles as many as 7,000 new cases annually. Although most cases involve appeals to the CAVC from final decisions of the Board of Veterans’ Appeals regarding many of the veterans benefit programs administered by the Secretary, PSG VII also handles cases involving petitions for extraordinary writs brought under the All Writs Act and applications for fees and expenses brought under the Equal Access to Justice Act (EAJA). In part due to the sheer volume of cases handled annually, PSG VII is subdivided into ten litigation teams, each consisting of a Deputy Assistant General Counsel as the team leader, a Senior Appellate Attorney, and approximately five Appellate Attorneys. R. Randall Campbell is the Assistant General Counsel in charge of PSG VII. Shortly after a case is filed with the CAVC, a member of the Integrated Case Management Team (ICM) within PSG VII receives the case information and prepares the case litigation folder. After preparation by ICM, all cases are screened to determine whether early intervention is required due to some obvious error in the Board’s decision, a jurisdictional defect, or an intervening change in the law. Cases not appropriate for early intervention are assigned to individual attorneys and paralegals on the litigation teams. Once a case is assigned, an attorney’s responsibilities include keeping abreast of Court-mandated deadlines, submitting appropriate pleadings, maintaining the litigation folder and, on occasion, presenting oral argument before CAVC on

behalf of the Secretary. In cases in which the veteran is represented by counsel, PSG VII attorneys also participate in pre-briefing conferences to preliminarily evaluate the merits of a case. Every claimant who has sought VA benefits has an original claims folder that is maintained and stored by the various regional offices, located throughout the country, Puerto Rico, and the Philippines. Although VA is in the process of converting veterans claims folders into an electronic format, the majority of these folders are still in paper format, some containing documentation dating back to World War II. By the time a case reaches the desk of a PSG VII attorney, however, the original claims folder has been scanned and saved onto a CD-ROM for ease of handling and to maintain the integrity of the original documents. On occasion, it is necessary for a PSG VII attorney to review the original claims folder to evaluate a record dispute. Although infrequent, once a case is called for oral argument before the CAVC, the assigned attorney will again conduct a thorough, objective, and critical review of the entire case, with an eye toward advances in jurisprudence that might have occurred subsequent to briefing. Next, the attorney seeks input from potential stakeholder offices, subject matter experts, and other qualified sources. After the case is thus prepared, attorneys participate in several rounds of moot court arguments to prepare for the actual argument before the Court. According to the Court, only about one percent of all cases get called for oral argument -- for PSG VII attorneys, oral argument presents an opportunity to shine. As noted above, PSG VII attorneys also handle applications for fees and expenses brought by appellants’ counsel under EAJA. The same PSG VII attorney who handled the underlying merits case before the Court will also review and respond to each appellant’s counsel’s EAJA application. Generally speaking, the PSG VII attorney must review for jurisdictional defenses, as well as defenses related to prevailing-party status and substantial justification for the underlying appeal. Further review includes a determination as to whether the claimed hours actually expended in litigation were reasonable. Because of the volume of cases, all PSG VII staff members have busy work schedules. The work A Peek Inside . . . , continued on page 14.


A Peek Inside . . . , continued from page 13. environment is friendly and supportive. From an attorney’s perspective, the work in PSG VII is professionally challenging and rewarding. There is opportunity for collaborative work as well as independence in managing one’s own cases. In addition, PSG VII attorneys must meet the challenge of responding to a large variety of work product submitted by pro se appellants, single practitioners, veterans service organizations, as well as small, mid-sized, and major law firms. The latest development for PSG VII consists of a previous physical office expansion (parts of the office located at 625 Indiana and K Streets, NW, were reunited a year ago at a new location at 90 K Street, NE), followed by a very recent retraction in physical space (due to a VA-wide effort to consolidate office space -- resulting in PSG VII losing about half of its new office space to another VA entity). This represents another change, but PSG VII will rise to the occasion and meet the challenges presented by this office consolidation. # Anita U. Ajenifuja is an Appellate Attorney with Professional Staff Group VII.

Court Comments on Board Hearing Officer Duties
by Aniela Szymanski

Reporting on Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012).
In Procopio v. Shinseki, the Court of Appeals for Veterans Claims provided useful insight into its interpretation of the duties of a Board of Veterans’ Appeals member during hearings. Despite this ruling, as stated in the conclusion of this article, VA subsequently enacted regulations to limit the applicability of the principles advanced by the Court. The issue at the center of the case was whether the Board hearing officer satisfied her duties as set forth in Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010), which determined that both Board hearing officers and agency-of-original-jurisdiction hearing officers are obligated to fully explain the outstanding issues in an appeal and suggest the submission of evidence that a claimant might have overlooked, as stated in 38 C.F.R. § 3.103(c)(2). The veteran in the case, Mr. Procopio, had his claim for benefits denied by the regional office because of a lack of competent evidence of in-service exposure to herbicides and a nexus between any such exposure and his current prostate cancer and diabetes mellitus type II. The Board held a hearing in September 2010. At the hearing, Mr. Procopio testified about his in-service exposure to herbicides while serving in the U.S. Navy off the coast of Vietnam as a “Blue Water Sailor.” He also asked that the record remain open so that he might submit an updated medical nexus opinion from a doctor demonstrating a nexus between his cancer and diabetes and herbicide exposure. The Board member did not ask any questions of Mr. Procopio, nor did she otherwise comment on his appeal during the hearing. The Court concluded that the hearing officer violated her duty to explain the issues outstanding in Mr. Procopio’s claim. She “did not explain that Mr. Procopio’s claims could only be substantiated by submitting evidence of in-service exposure to herbicides and a nexus between the exposure and his current disabilities (the missing elements in his Procopio, continued on page 15.

Representing all sections of the Veterans' Bar: L-R: Zachary Stolz, Veterans Attorney; Gayle Strommen, VA Office of General Counsel Attorney; Judge Alan G. Lance, Sr., CAVC; Victoria Moshiashwili, Law Clerk, CAVC.


Procopio, continued from page 14. claims).” Additionally, after Mr. Procopio stated that he would submit a nexus opinion from his doctor, the Court stated that she “should have interjected, explaining that a nexus opinion alone would be insufficient to substantiate his claims without evidence of in-service exposure to herbicides.” The Board determined that these errors by the hearing officer violated 38 C.F.R. § 3.103(c)(2) and the Court’s precedent in Bryant. Despite the fact that the Secretary argued that any error on the hearing officer’s part was harmless, asserting that “it borders on absurd to presume that [he] was unaware of the need to submit evidence showing he had actually been exposed to herbicide agents in service,” and that the record demonstrated he had actual knowledge of the evidence necessary to substantiate his claim, the Court was unconvinced. The Court cited to Bryant for the principle that “prejudice arises from the failure of the hearing officer” to fulfill her duties because of the “lost additional opportunity to try and submit such evidence before [the] claim [is] finally adjudicated.” The Court found that Mr. Procopio was not prejudiced by a separate error, however. Mr. Procopio argued that VA failed to assist him by not requesting that the Joint Service Records Research Center (JSRRC) verify his exposure to herbicides and place a memo in his file as to the results of the request, as directed by the VA Adjudications Manual. The Court found the absence of this memo in Mr. Procopio’s file did not prejudice him because JSRRC had previously found no evidence indicating that U.S. Navy ships transported herbicides, and was unable to provide “evidence to support a Veteran’s claim of exposure to tactical herbicide agents while serving aboard a Navy . . . ship during the Vietnam era,” and this finding was already incorporated into the VA Adjudications Manual. Thus, the Court stated, “it has already been determined that no such records exist.” The Court also took no issue with the Board’s treatment of a Royal Australian Navy study Mr. Procopio submitted in support of his claim. Mr. Procopio submitted the study as evidence that water supplies on Navy ships may have been contaminated with herbicides because the ships used evaporative distillation of seawater for their water supplies. The Board found that the study was “too general in nature

to provide, alone, the necessary evidence to show” Mr. Procopio was actually exposed to herbicides aboard the ship on which he was stationed. The Court was satisfied with the Board’s explanation for its treatment of that study. Lastly, Mr. Procopio argued that VA should have requested records from the U.S. Navy to determine whether its ships used the evaporative distillation process described in the Royal Australian Navy study. The Court implied that the Board had not erred in requiring such a request because nothing in the record indicated Mr. Procopio had previously requested that VA obtain such information. Ultimately, however, the Court stated that this was a matter Mr. Procopio could pursue on remand. It is clear from this case that the Court expects hearing officers to make affirmative efforts to fill in the missing elements of a claim. The Court reiterated that the hearing is an opportunity for a veteran to both understand what is missing from his claim, as well as have the opportunity to complete the record. The Court also made clear that it is unacceptable for a hearing officer to be a passive observer. # Aniela Szymanski is an Appellate Attorney with Bergmann & Moore, LLC, based in Bethesda, MD.

BVA attorneys Mary Sorisio and Nicole Klassen enjoy the City Club.


Judge Greenberg, continued from the front page. 2001. He was also a member of the New Jersey Supreme Court Civil Practice Committee. With the approval of the Secretary of Defense, on the recommendation of the White House, Judge Greenberg became chairman of the Reserve Forces Policy Board in 2009, a board established by the Secretary of Defense in 1951 and by act of Congress in 1952. On July 26, 2011, Judge Greenberg was awarded the Secretary of Defense Medal for Outstanding Public Service, the second-highest civilian award in the Defense Department, at a public ceremony in the Pentagon, and completed his term in August 2011. In 2006, his Civil Trial Handbook, Volume 47 of the New Jersey Practice Series, was published by Thomson/West. A special twentieth anniversary issue was published in 2009, to commemorate the 1989 publication of its predecessor, the Trial Handbook for New Jersey Lawyers. A retired Brigadier General, he served as a member of the New Jersey World War II Memorial Commission. In June 2009, he received the highest honor granted by the New Jersey State Bar Foundation, its medal of honor, for his work in establishing the military legal assistance program, and especially for his public service representation of soldiers at Walter Reed Army Medical Center during their physician disability hearings. His article in the June 2007 issue of New Jersey Lawyer Magazine describes the program

in detail. He was special litigation counsel pro bono to the National Guard Association of the United States. Judge Greenberg was a commissioner of the New Jersey State Commission of Investigation. He also served as assistant counsel to the governor of New Jersey and as commissioner of the New Jersey State Scholarship Commission. Judge Greenberg served as the first adjunct professor of military law at the Seton Hall University School of Law. He was chosen as the New Jersey Lawyer of the Year for 2009 by the New Jersey Law Journal. He received the Distinguished Alumnus Award from the Johns Hopkins University in 2010, and the Rutgers Law School Public Service Award in 2010 for his work in developing and leading efforts to represent wounded and injured soldiers at Walter Reed. Judge Greenberg is admitted to the bars of New Jersey, New York, and the District of Columbia. He is a member of the bar of the Supreme Court of the United States, and of the Third, Fourth, and Federal Circuits, the Southern District of New York, and the United States Court of Appeals for the Armed Forces. He is a graduate of the Johns Hopkins University (AB, 1964) and Rutgers University Law School (JD, 1967). He is married to the former Betty Kaufmann Wolf of Pittsburgh. They have three children, Katherine of New York, Anthony of Baltimore, and Elizabeth of New York. #

Veterans Representatives: Jamie Rudert, VSO (left) and Aniela Szymanski, USMC Veteran and Attorney (right) with Christopher Cosgrove (center).

Water cooler chat: David Traskey, BVA attorney, and Anne Stygles, Chief Deputy of Operations, CAVC.



The U.S. Court of Appeals for Veterans Claims (CAVC) Bar Association is pleased to announce a scholarship competition specifically geared to law students. Five students will be selected to receive a paid registration ($275 value) to the U.S. Court of Appeals for Veterans Claims 12th Judicial Conference – a two-day conference to be held on Thursday, April 18 and Friday, April 19, 2013, at the Grand Hyatt Washington at Metro Center (1000 H Street NW, Washington, DC 20001). Winners will also receive free registration to the Bar Association's half-day component ($95 value) which will immediately follow in the afternoon on Friday, April 19. The Judicial Conference, which is expected to sell out, will include presentations from notable authorities in the field of Veterans Law. More information regarding the Court's judicial conference may be found on the Court's web page at www.uscourts.cavc.gov. Please note that any expenses incurred for travel to and lodging for the Judicial Conference will be the responsibility of the student. Students are encouraged to consult with their law school to determine if funds are available to subsidize travel costs. Eligibility and Entry Requirements: To be eligible, applicants must be currently enrolled at an ABA accredited law school. To enter, applicants must submit their entries under any one of the three categories described below and must specifically identify the category they have selected. Only one entry is permitted per applicant. Entries must be transmitted via email to cavcbarassoc@cavcbar.net for consideration. The deadline for all entries is Monday, February 25. The five winners will be announced on the Bar Association's website (www.cavcbar.net) after Monday, March 4, 2013, and will be registered free of charge for the two-day conference. Good luck!

Competition categories (choose one):
1. Writing competition -- Students seeking a scholarship under this category should describe a current challenge affecting veterans and should include a proposed solution or means to address the challenge. Written submissions should be a minimum of 500 (but should not exceed 750) words. Students who win a scholarship in this category will be expected to allow to the Bar Association to reprint a full or condensed version of their essay in an upcoming issue of the Veterans Law Journal, the quarterly publication of the CAVC Bar Association. Suggested topics include: a. Suicide: Currently, one veteran commits suicide every 80 minutes. Some estimates state that 150,000 Vietnam Veterans have committed suicide. This is not a new problem, but rather an enduring one. What can be done to address this epidemic? Claims processing: On average, a VA disability claim takes six months to process. That means a veteran is without benefits for six months until VA gives him an initial decision on his application. What recommendations would you make to ensure veterans do not lose hope in the system or avoid seeking assistance altogether? Increase in women veterans: With the number of women veterans expected to increase dramatically in the next 10 years, what recommendations would you make in adapting traditional veteran services to the female population?




Community service - Students who seek a scholarship under this category must describe individual community service or outreach involving Veterans. This can come in the form of volunteering for charities, veteran service organizations, bringing attention to social/political issues, or even just making a difference in one veteran's life. This entry should be in essay form (500-750 words) and should include a letter of recommendation from the appropriate individual or organization. Artistic contribution - Students seeking a scholarship under this category would create an artistic depiction recognizing or honoring veterans, or raising awareness of veterans' issues. Judging will be based on how well the piece conveys its intended message and the creativity and choice of medium. Entries under this category may be in the form of a drawing, painting, poem, song, photo collage, or video. Students who win a scholarship in this category will be expected to sign a release granting permission to the Bar Association to use that work, with attribution to the creator, in the Bar Association's efforts to recognize and honor veterans or to raise awareness of veterans' issues.


Court of Appeals for Veterans Claims Bar Association Ben Franklin Station P.O. Box 7992 Washington, DC 20044-7992 MEMBERSHIP APPLICATION/RENEWAL FORM
_______________________________________________________________________________________ Last Name First Name Middle Initial ________________________________________________________________________________________ Employer / Firm Name ________________________________________________________________________________________ Mailing Address City State Zip _______________________________________________________________________________________ Telephone Number (including area code) E-mail Address

Membership Category (Please Check One)
______ REGULAR MEMBERSHIP: I am an attorney or non-attorney practitioner in private or government practice and certify that I am admitted to practice in the U.S. Court of Appeals for Veterans Claims (Court). ______ ASSOCIATE MEMBERSHIP: I am an attorney in good standing in the highest court of my state, but not admitted to practice before this Court. ______ GOVERNMENT/ORGANIZATIONAL MEMBERSHIP: I am an attorney or non-attorney practitioner in government practice designated for government/organizational membership by my supervisor. ______ COURT MEMBERSHIP: I am an employee of the Court and have been designated as eligible to participate in Bar Association activities. (Non-voting Membership) ______ STUDENT MEMBERSHIP: I am enrolled in an accredited law school. ______ TRIAL MEMBERSHIP: I am a newly-admitted attorney seeking a trial membership for the remainder of the membership year, ending September 30th. (Non-voting Membership) Membership fees are payable by check to the Court of Appeals for Veterans Claims Bar Association. Please mail your completed application to the address above. __________________ (Date) ____________________________________________________ (Signature) $95.00*

$95.00 N/C**

N/C*** FEE: $95** $25.00 FREE!

* An organizational/group rate of $75 per membership is available for 5 or more members of an organization or group applying for (or renewing) their membership. **Government organizational members do not need to individually remit fees with this form. The organization will make one dues payment at the rate of $75 per membership. ***Court employees do not need to individually remit fees with this form. The Court will make one annual dues payment to the Bar Association.

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